ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER OF THE COURT OF FIRST INSTANCE
26 October 2009 (*)
(Restrictive measures directed against persons associated with Usama bin Laden, the Al-Qaida network and the Taliban – Freezing of funds – Action for annulment – Legal aid – Agreement of the Security Council of the United Nations)
In Case T‑127/09 AJ,
Abdulbasit Abdulrahim, residing in London (United Kingdom), represented by J. Jones, Barrister, and M. Arani, Solicitor,
applicant,
v
Council of the European Union, represented by E. Finnegan and R. Szostak, acting as Agents,
and
Commission of the European Communities, represented by P. Aalto, acting as Agent,
defendants,
APPLICATION for legal aid,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
1 By an application a copy of whose signed original was received at the Court Registry by fax on 16 March 2009, with certified copies and the signed original received at the Registry on 26 March and 15 April 2009 respectively, Mr Abdulbasit Abdulrahim brought an action against the Council and the Commission, first, for the annulment in part of Commission Regulation (EC) No 1330/2008 of 22 December 2008 amending for the 103rd time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban (OJ 2008 L 345, p. 60), and, secondly, for compensation in respect of the damage allegedly caused by that act.
2 By document lodged at the Registry of the Court of First Instance on 20 March 2009, Mr Abdulrahim made an application for legal aid under Article 94 of the Rules of Procedure of the Court of First Instance.
3 In support of that application, he submits in particular, on the basis of supporting documents which he produces, that: he himself receives a net salary of GBP 400 per month, while his wife receives GBP 500 per month in family allowances; he has three dependent children; his pizza business has stopped and is making a loss as a result of the contested regulation being adopted; and he has been granted legal aid in the United Kingdom.
4 By letter from the Registry of 25 May 2009, the Court of First Instance invited the defendants to submit observations on Mr Abdulrahim’s application for legal aid.
5 In its observations, lodged at the Registry on 8 June 2009, the Council contends, as its main argument, that the action for annulment brought by Mr Abdulrahim is manifestly inadmissible since it was lodged out of time and that, in accordance with Article 94(3) of the Rules of Procedure, legal aid should therefore be refused. The Council argues that the time-limit for bringing an action for annulment of Regulation No 1330/2008 expired on 16 March 2009, allowance being made for the extension on account of distance, whereas the original of the application was lodged at the Registry on 15 April 2009, there being no proof of its transmission by fax prior to that date. As to the application for legal aid, that was lodged on 20 March 2009, that is four days after the expiry of the period prescribed.
6 In the alternative, the Council contends that no evidence was provided in support of Mr Abdulrahim’s assertion that he was granted legal aid in the United Kingdom. The Council therefore enquires whether a certificate issued by the competent national authority, within the meaning of Article 95(2) of the Rules of Procedure, has in fact been provided. The Council states, however, that it leaves it to the Court to assess whether the information and supporting documents provided by Mr Abdulrahim constitute sufficient evidence that he requires legal aid, and adds that it does not raise any objection in that regard.
7 As regards the form of the legal aid sought, the Council states that Mr Abdulrahim’s application seeks legal aid for the instruction of a single solicitor. In its view, this is acceptable.
8 As regards the appropriate amount of legal aid to be granted to Mr Abdulrahim, the Council states that it is unsatisfactory that he has not provided any estimate thereof. The Council also states that the issues raised by the present case are similar to those addressed in the order of the President of the Second Chamber of the Court of First Instance of 3 February 2003 in Case T-253/02 AJ Ayadi v Council, not published in the ECR, which limited the amount of legal aid granted to a maximum of EUR 10 000. Consequently, the Council takes the view that, if legal aid were to be granted in the present case, it should be for an amount less than EUR 10 000.
9 In its observations, lodged at the Registry on 9 June 2009, the Commission states that it has no objection as a matter of principle to the grant of the legal aid requested, but that would be subject to Mr Abdulrahim’s obtaining a derogation under Article 2a of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan (OJ 2002 L 139, p. 9).
10 In his comments in reply, received at the Registry on 22 July 2009, Mr Abdulrahim denies that the action for annulment is inadmissible.
11 In those same comments, he provides a breakdown of the lawyers’ fees and disbursements incurred to date, which in his view amount to EUR 10 550. He states that future costs are impossible to assess, but objects to legal aid being limited to a maximum of EUR 10 000.
12 In addition, it is apparent from those comments that Mr Abdulrahim would like the barrister and solicitor who have assisted him thus far to defend his interests by way of legal aid. The involvement of a barrister and a solicitor corresponds to the system of legal representation which applies in England and Wales and is fully justified by the complexity of the present case.
13 A letter from the Legal Services Commission of 14 July 2009 was included as an annex to those comments, confirming that Mr Abdulrahim is eligible for legal aid in England and Wales.
14 Under cover of a letter received at the Registry on 28 September 2009, Mr Abdulrahim also submitted, in the form of a licence granted on 21 August 2009 by the Asset Freezing Unit, HM Treasury, the notification from the competent national authority, referred to in Article 2a(2) of Regulation No 881/2002, showing that he had requested a derogation from Article 2 of that regulation, for the purpose of obtaining legal aid in the context of the present proceedings, and that that derogation had been granted in compliance with those provisions.
15 In that connection, the President of the Seventh Chamber of the Court of First Instance notes that, until such time as a decision has been given on the substance, or operation of the contested measures has been suspended in the main proceedings, the provisions of Article 2(2) and (3) of Regulation No 881/2002, adopted pursuant to Resolutions 1267 (1999), 1333 (2000), 1390 (2002) and 1822 (2008) of the Security Council of the United Nations, prohibit the Court of First Instance in principle from paying any sum of money whatsoever to Mr Abdulrahim’s lawyers by way of legal aid, unless it is formally established that the applicant has been granted a derogation to that end under Article 2a of Regulation No 881/2002, adopted in accordance with Resolution 1452 (2002) of the Security Council of the United Nations (see, to that effect, orders of the President of the Second Chamber of the Court of First Instance of 3 April 2006 in Case T‑49/04 AJ Hassan v Council and Commission, not published in the ECR, and of 27 October 2006 in Case T-318/01 AJ Othman v Council and Commission, not published in the ECR).
16 Since the document referred to in paragraph 14 above shows, however, that the provisions of Article 2a of Regulation No 881/2002 have been properly complied with, it is appropriate to give a decision on the application for legal aid.
17 In that connection, Article 94(1) of the Rules of Procedure provides that, in order to ensure effective access to justice, legal aid granted for proceedings before the Court of First Instance is to cover, in whole or in part, the costs involved in legal assistance and representation by a lawyer in proceedings before the Court of First Instance. The cashier of the Court of First Instance is to be responsible for those costs.
18 Under Article 94(2) and (3) of the Rules of Procedure, the grant of legal aid is subject to the twofold condition that the applicant is, because of his economic situation, wholly or partly unable to meet the costs involved in legal assistance and representation by a lawyer in proceedings before the Court of First Instance, and his action does not appear to be manifestly inadmissible or manifestly unfounded.
19 Under Article 95(2) of the Rules of Procedure, the application for legal aid must be accompanied by all information and supporting documents making it possible to assess the applicant’s economic situation, such as a certificate issued by the competent national authority attesting to his economic situation.
20 Under Article 96(2) of the Rules of Procedure, the decision on the application for legal aid is to be taken by the President by way of an order, which must, if it refuses the aid applied for, state the reasons on which it is based.
21 In the present case, without prejudice to the Court’s decision on whether the action in the main proceedings in Case T‑127/09 is admissible, the President of the Seventh Chamber of the Court of First Instance considers that the action in respect of which legal aid is being applied for does not appear to be manifestly inadmissible, contrary to the Council’s submissions. Consequently, there is no need to refuse legal aid on the basis of Article 94(3) of the Rules of Procedure.
22 While it is not in dispute that the time-limit for bringing an action in the main proceedings expired on 16 March 2009 and although it is true that the signed original of the application was received at the Registry only on 15 April 2009, it should also be pointed out that a copy of that signed original was received at the Registry by fax on 16 March 2009, and that certified copies of the original were received at the Registry on 26 March 2009.
23 In addition, Mr Abdulrahim provided, in a letter to the Registry of 8 May 2009, certain information, substantiated by supporting documents supplied in annex to that letter, which may prove the existence of unforeseeable circumstances or of force majeure, within the meaning of Article 45 of the Statue of the Court of Justice, or of an excusable error which prevented him from lodging the signed original of the application at the Registry no later than 10 days after sending a copy of the signed original by fax, as required under Article 43(6) of the Rules of Procedure.
24 Since the purpose of legal aid is to ensure effective access to justice, in accordance with Article 94(1) of the Rules of Procedure, Mr Abdulrahim should therefore be ensured appropriate legal representation in the context of the main proceedings, including in order to contest the plea of inadmissibility of the action raised by the Council.
25 As to the remainder, the President of the Seventh Chamber of the Court of First Instance finds, in the light of the information and supporting documents provided by Mr Abdulrahim, without being opposed by the Council or the Commission, that the remaining conditions relating to the grant of legal aid are satisfied.
26 As regards the amount of legal aid to be granted to Mr Abdulrahim, it should be noted that, in the orders in Ayadi v Council, Hassan v Counciland Commission and Othman v Council and Commission, which related to proceedings very similar to the present, the President of the Second Chamber of the Court of First Instance held that, in light of the subject-matter and the nature of the dispute, of its legal importance and also of the difficulties that might be foreseen in the case, of the foreseeable extent of the work which the proceedings before the Court would entail for the lawyers and of the interest which the case presented for the parties, the fees and disbursements of the lawyers appointed to act on the basis of legal aid could not, in principle, exceed EUR 10 000 for the proceedings as a whole.
27 It should also be noted that the action for annulment brought by Mr Abdulrahim appears to raise issues of law essentially identical to those decided upon by the Court of Justice in the judgment in Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351.
28 Having regard to the foregoing considerations, Mr Abdulrahim must be granted legal aid, and the decision as to the amount of the fees and disbursements must be reserved. In the light of the subject-matter and the nature of the dispute, of its legal importance and also of the difficulties which may be foreseen in the case, of the foreseeable extent of the work which the proceedings before the Court will entail for the lawyers and of the interest which the case presents for the parties, it must, however, be held at this point, in accordance with the third subparagraph of Article 96(3) of the Rules of Procedure, that the fees and disbursements of the lawyers appointed to act on the basis of legal aid may not, in principle, exceed EUR 10 000.
29 Lastly, pursuant to Article 96(3) of the Rules of Procedure, Mr Abdulrahim’s current barrister, Mr Jones, and current solicitor, Ms Arani, must be appointed to represent the applicant in the context of the main proceedings, as requested by Mr Abdulrahim.
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Mr Abdulbasit Abdulrahim is granted legal aid.
2. John Jones and Muddassar Arani are appointed as lawyers to act for Mr Abdulrahim.
3. The fees and disbursements of the lawyers appointed shall be paid by the cashier of the Court of First Instance. The decision on the amount of those fees and disbursements is reserved. However, those fees and disbursements may not, in principle, exceed EUR 10 000.
Luxembourg, 26 October 2009.